U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
ARB CASE NO. 97-146
ALJ CASE NO. 95-TSC-8
DATE: September 29, 1997
In the Matter of:
PAUL LOTT,
COMPLAINANT,
v.
ALYESKA PIPELINE SERVICE
COMPANY AND ARCTIC SLOPE
INSPECTION SERVICE,
RESPONDENTS.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
FINAL ORDER APPROVING SETTLEMENT
AND DISMISSING COMPLAINT
This case arises under the Clean Air Act, 42 U.S.C. §7622
(1988), Toxic Substances Control Act, 15 U.S.C. §2622 (1988), Solid Waste Disposal
Act, 42 U.S.C. §6971 (1988), Safe Drinking Water Act, 42 U.S.C. §300j-9(i)
(1988), Water Pollution Control Act, 33 U.S.C. §1367 (1988) ("the whistleblower
acts"), and the applicable regulations which appear at 29 C.F.R. Part 24 (1994). The
parties submitted a settlement agreement seeking approval of the settlement and dismissal of
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the complaint. The Administrative Law Judge issued a Recommended Order on September
4, 1997 approving the settlement.
The request for approval is based on an agreement entered into by the
parties, therefore, we must review it to determine whether the terms are a fair, adequate and
reasonable settlement of the complaint. 29 C.F.R. §24.6. Macktal v. Secretary
of Labor, 923 F.2d 1150, 1153-54 (5th Cir. 1991); Thompson v. U.S. Dep't of
Labor, 885 F.2d 551, 556 (9th Cir. 1989); Fuchko and Yunker v. Georgia Power
Co., Case Nos. 89-ERA-9, 89-ERA-10, Sec. Order, Mar. 23, 1989, slip op. at 1-2.
Review of the agreement reveals that it may encompass the settlement
of matters under laws other than the whistleblower acts. See ¶¶B, 2,
7. As stated in Poulos v. Ambassador Fuel Oil Co., Inc., Case No. 86-CAA-1,
Sec. Order, Nov. 2, 1987, slip op. at 2:
[The Secretary's] authority over settlement agreements is limited to such statutes
as are within [the Secretary's] jurisdiction and is defined by the applicable
statute. See Aurich v. Consolidated Edison Company of New York,
Inc., Case No. [86-]CAA-2, Secretary's Order Approving Settlement,
issued July 29, 1987; Chase v. Buncombe County, N.C., Case No.
85-SWD-4, Secretary's Order on Remand, issued November 3, 1986.
We have therefore limited our review of the agreement to determining whether the
terms thereof are a fair, adequate and reasonable settlement of Complainant's allegations that
Respondents violated the whistleblower acts.
Paragraph 15 provides that the agreement will be governed by the laws
of Alaska. We construe this to except the authority of the Secretary of Labor and any Federal
court which shall be governed in all respects by the laws and regulations of the United States.
See Phillips v. Citizens' Ass'n for Sound Energy, Case No. 91-ERA-25, Final Ord.
of Dismissal, Nov. 4, 1991, slip op. at 2.
Paragraphs 7 and 8 provide that the Complainant shall keep the terms
of the settlement confidential, with certain specified exceptions. We have held in a number of
cases with respect to confidentiality provisions in settlement agreements that the Freedom of
Information Act, 5 U.S.C. §552 (1988)(FOIA) "requires agencies to disclose
requested documents unless they are exempt from disclosure. . . ." Coffman v.
Alyeska Pipeline Services Co. and Arctic Slope Inspection Services, ARB Case No. 96-141, Final Order Approving Settlement and Dismissing Complaint, June 24, 1996, slip op.
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at 2-3. See also Plumlee v. Alyeska Pipeline Services Co., Case Nos. 92-TSC-7,
10; 92-WPC-6, 7, 8, 10, Sec. Final Order Approving Settlements and Dismissing Cases with
Prejudice, Aug. 6, 1993, slip op. at 6; Davis v. Valley View Ferry Authority, Case
No. 93-WPC-1, Sec. Final Order Approving Settlement and Dismissing Complaint, Jun. 28,
1993, slip op. at 2 n.1 (parties' submissions become part of record and are subject to the
FOIA); Ratliff v. Airco Gases, Case No. 93-STA-5, Sec. Final Order Approving
Settlement and Dismissing Complaint with Prejudice, Jun. 25, 1993, slip op. at 2 (same).
The records in this case are agency records which must be made
available for public inspection and copying under the FOIA. In the event a request for
inspection and copying of the record of this case is made by a member of the public, that
request must be responded to as provided in the FOIA. If an exemption is applicable to the
record in this case or any specific document in it, the Department of Labor would determine
at the time a request is made whether to exercise its discretion to claim the exemption and
withhold the document. If no exemption were applicable, the document would have to be
disclosed. Since no FOIA request has been made, it would be premature to determine whether
any of the exemptions in the FOIA would be applicable and whether the Department of Labor
would exercise its authority to claim such an exemption and withhold the requested
information. It would also be inappropriate to decide such questions in this proceeding.
Department of Labor regulations provide specific procedures for
responding to FOIA requests, for appeals by requestors from denials of such requests, and for
protecting the interests of submitters of confidential commercial information. See
29 C.F.R. Part 70 (1995).1
1 Pursuant to 29 C.F.R.
§70.26(b), submitters may designate specific information as confidential commercial information
to be handled as provided in the regulations. When FOIA requests are received for such information,
the Department of Labor shall notify the submitter promptly, 29 C.F.R. §70.26(e); and the
submitter will be given a reasonable period of time to state its objections to disclosure, 29 C.F.R.
§70.26(e); and the submitter will be notified if a decision is made to disclose the information, 29
C.F.R. §70.26(f). If the information is withheld and suit is filed by the requester to compel
disclosure, the submitter will be notified, 29 C.F.R. §70.26(h).